The Long Shadow of George Washington Looms over Donald Trump’s Selection of a Cabinet

Lindsay M. Chervinsky is a Ph.D.
candidate in history at the University of California, Davis.

For the last week, stories on
President-Elect Trump’s potential cabinet nominees have filled the
news, and with good reason. Cabinet secretaries exercise enormous
power—they define and enforce policy with a great degree of
autonomy. Yet none of these stories mention the fact that the
Constitution did not create the cabinet, nor did Congress authorize
it through legislation. In fact, no legal authority establishes the
cabinet as an advisory body or regulates the relationship between the
secretaries and President.

The cabinet’s absence from the
nation’s governing documents was no mistake. During the Federal
Constitutional Convention in 1787, the delegates rejected proposals
that would have created a privy council to advise the President.
Instead, they adopted Article II, Section 2 of the Constitution,
which provides two options for the president to obtain advice. First,
the President can request written advice from the department
secretaries. Second, the President can consult with the Senate on
foreign affairs. The Constitution, a document of enumerated powers,
does not provide any other means for the President to obtain advice
from government officials.

By limiting the President to written
communications with the department secretaries, the delegates sought
to increase transparency in the executive branch and ensure that each
official took responsibility for their political positions. During
the Revolutionary War, when the Departments of Finance, Foreign
Affairs, and War first developed, the department secretaries served
as agency heads who reported to the Continental Congress. The
delegates expected the secretaries to continue overseeing their
departments and to report formally to the President—not to convene
as a body of advisors. The delegates preferred the Senate, an elected
body, to play the primary role of advising the President on
diplomatic matters, and did not want to cede this advisory
responsibility to the department secretaries.

President George
Washington initially limited himself to the two options outlined in
the Constitution. On
August 22, 1789, he visited the Senate for the first time. Washington
planned to send commissioners to a summit in September 1789 to
negotiate with representatives from the Carolinas and the Cherokee
and Choctaw nations. Because Washington had never authorized federal
commissioners before, he wanted the Senate’s advice on how he
should frame his instructions. He brought a series of questions for
the senators to consider and expected them to debate the issues and
provide their individual opinions on the Senate floor. Instead, the
Senators shuffled their papers, cleared their throats, and sat in
awkward silence. Senator William Maclay of Pennsylvania believed that
the Senators were too intimidated by Washington’s presence to
respond, so he proposed that they refer the matter to committee for
further discussion. Washington was furious. Abandoning his famous
reserve, he yelled, “this defeats every purpose of my coming here!”
Washington concluded that the Senate was too large and cumbersome to
provide the timely advice that effective diplomacy demands, and he
never returned to seek its advice again.

Shortly after his inauguration,
Washington also requested written advice from the department
secretaries, but he quickly discovered that the issues facing the
administration were too complex to resolve through written
correspondence. Washington began inching toward a cabinet in 1790,
when he requested follow-up meetings with individual department
secretaries after they submitted written opinions. In 1791,
Washington took the next step when he departed Philadelphia—then
the seat of government—for a tour of the southern states.
Washington authorized the secretaries to meet in his absence if an
urgent matter should arise. In November 1791, he summoned his first
cabinet meeting to review commercial treaties with France and Great
Britain. Over the next year, Washington convened a handful of cabinet
meetings, but continued to handle the majority of government business
in conferences with individual secretaries. In April 1793—a
watershed moment for cabinet development—Washington summoned
regular cabinet meetings for the first time as France and Great
Britain threatened to drag the United States into their European war.
Over the next year, the cabinet met as frequently as five times per
week to establish rules of neutrality, determine how to enforce
neutral policy, and decide how to engage with hostile European
powers. After 1793, the cabinet remained a central part of the
executive branch for the duration of Washington’s administration.

As with many of the policies set in
Washington’s administration, his cabinet precedent continues to
shape modern presidential politics. Although the executive branch and
the cabinet have both expanded since the 1790s, each President—like
Washington—has the power to select his own advisors and decide how
often and in what capacity they will interact. In some
administrations, such as the Lincoln and Obama administrations, the
department secretaries served as the President’s most trusted
advisors. In others, like the Jackson or Kennedy administrations, the
President preferred other counselors. Although the delegates to the
Constitutional Convention may not have wished it so, the cabinet has
become a flexible institution that serves at the pleasure of the
President.

We are only one week into
President-Elect Trump’s transition, but already his hiring
decisions have stirred up significant controversy in the press and on
social media. Yet, this controversy is merely a reflection of the
system built by Washington, in which the President has nearly
unchecked power to select his own advisors. After Trump announces his
nominees, the Senate must approve the fifteen department heads. But,
the Senate has rejected only six cabinet nominees since the 1790s.
The Senate’s first rejection was in 1834 when President Andrew
Jackson nominated Attorney General Roger Taney to be Treasury
Secretary. The most recent rejection occurred in 1989 when the Senate
opposed President George H.W. Bush’s nomination of John G. Tower to
be Secretary of Defense. More often, Presidents have withdrawn a
nominee when confirmation has seemed unlikely.

After the Senate
approves President-Elect Trump’s nominees, the secretaries will
largely operate independently and without supervision. The
Constitution grants the public very little oversight. Congress can
call for investigations into departments and, as a very last resort,
impeach a department secretary. In practice, though, such an event is
unlikely. The House of Representatives has initiated only nine
impeachment proceedings of department secretaries. The House
unanimously impeached President U.S. Grant’s Secretary of War,
William Belknap, in 1876, but the other eight proceedings either died
in committee or the secretary resigned prior to impeachment.

Other advisors are
further outside the reach of public oversight. For example, Trump has
already selected a Chief-of-Staff, Reince Priebus, and a Chief
Strategist, Stephen Bannon. The Constitution does not define either
of these positions. They are not subject to approval by any other
branch of government—not the Senate, not the House, and not the
people through direct election. The media attention devoted to these
staff selections, as well as the department secretary nominees,
reflects the public’s widespread concern that these appointments
are not subject to the vigorous vetting one might expect of an
official with top-secret security clearance. This process also
demonstrates that, while many aspects of the executive branch would
be unrecognizable to the founding generation, the President’s
selection of his own advisors would be quite familiar thanks to the
precedent established during Washington’s administration.